On appeal from a judgment of the Supreme Court, whose opinion is reported in 17 N.J. Mis. R. 289.
For the appellants, Charles Bernstein.
For the respondent, Aaron Z. Schomer.
The opinion of the court was delivered by
HEHER, J. This is an action in tort for the negligent performance of a duty undertaken by the defendant attorney and counsellor-at-law to examine the title to real estate and to advise his clients whether the title was "good and marketable," and to what extent encumbered; and the primary question for decision is whether the husband's inchoate right of curtesy in his wife's lands is, by force of the law pre-existing the effective date of chapter 71 of the Laws of 1927, as amended by chapter 209 of the Laws of 1928 (Pamph. L. 1927, p. 128; Pamph. L. 1928, p. 380; R.S. 1937, 3:37-2), liable to seizure and sale, with the wife's estate of inheritance, under an execution issued upon a judgment recovered against husband and wife jointly. Children were born of the marriage capable of inheriting the estate.
At common law, the husband, in virtue of the marriage alone, becomes vested of a freehold estate, jure uxoris, in his wife's lands, and thereby is immediately entitled to the rents, issues and profits thereof. This has no relation to the estate by the curtesy, since its existence does not depend upon the birth of issue, and it continues only during coverture. It is a vested interest that becomes merged in the indefeasible freehold estate of curtesy upon the birth of living offspring capable of inheriting the wife's estate. By the birth of issue alive, the husband's estate is converted instanter into a vested legal estate for his natural life, termed curtesy initiate, which becomes consummate upon the death of the wife. Curtesy is an estate arising by operation of law, likened somewhat to title by descent. Nicholls v. O'Neill, 10 N.J. Eq. 88; Johnson v. Cummins, 16 Id. 97; Porch v. Fries, 18 Id. 204; Naylor v. Field, 29 N.J.L. 287; Cushing v. Blake, 30 N.J. Eq. 689; Castner v. Sliker, 43 Id. 8; Trade Insurance Co. v. Barracliff, 45 N.J.L. 543; Doremus v. Paterson, 69 N.J. Eq. 188; affirmed, Ibid. 775; Hackensack Trust Co. v. Tracy, 86 N.J. Eq. 301; Bucci v. Popovich, 93 Id. 121;
affirmed, Ibid. 511; Mullen v. Mullen, 98 Id. 90; 98 Id. 90; affirmed, Ibid. 728; Hannan v. Wilson, 100 Id. 528. See, also, Denny v. McCabe, 35 Ohio St. 576; McNeer v. McNeer, 142 Ill. 388; 32 N.E. Rep. 681; Mettler v. Miller, 129 Ill. 630; 22 N.E. Rep. 529.
There is confusion in the cases as to the precise nature of the modification of the common law tenancy by the curtesy effected by the Married Woman's Act of 1852, as supplemented and amended. Pamph. L., p. 407; Nixon's Digest 466; Rev. Stat. 1877, p. 636; Comp. Stat. 1910, p. 3222; R.S. 1937, 37:2-12. Clearly, it abolished the estates jure uxoris and curtesy initiate. Does the husband have any interest or estate in his wife's lands prior to curtesy consummate, and, if so, what is its nature?
By sections 1 and 3 of the original enactment, the real and personal property of the wife "shall be her sole and separate property, as though she were a single woman." In Porch v. Fries, supra, Chancellor Zabriskie declared that, by virtue of that provision, the husband has, during coverture, "no interest or estate in the lands of his wife. She holds them to her separate use as if she were a feme sole, free from his control. She can sell them with his assent, and if she so sells and conveys them, she conveys them as she holds them, free from any interest or estate of her husband. At common law, the death of the wife was necessary to the estate by curtesy. * * * But upon the birth of a child, another anomalous estate was created, called tenancy by the curtesy initiate. It was the increasing the estate for their joint lives, which he held before in his wife's lands, into an estate for his own life. The Married Woman's Act, as it prevented his acquiring any interest in his wife's estate during her life, destroyed the estate of tenancy by the curtesy initiate." That statute "does not defeat the husband's curtesy at the death of the wife, provided she has not aliened her estate before. The act only protects her estate during her life; it does not, at her death, affect the law of succession as to real or personal estate." And in Cushing v. Blake, supra, Mr. Justice Depue, in a deliverance for this court, said: "Upon principle, as well as by the weight of authority, it may be regarded as
settled that the husband's estate by the curtesy will arise in him at the death of his wife, though the limitation to her during her life is for her sole and separate use, exclusive of any interest or control on the part of the husband. The limitation for her separate use terminates at her death. Seizin by the husband during coverture is not necessary to his curtesy. Possession in conformity with the equitable interests of the cestui que trust, whether by the cestui que trust, or by the trustee, is all that is essential to support the title of the husband as tenant by the curtesy. * * * Curtesy is a legal incident of the wife's estate of inheritance, and is a right favored in the law. * * * The Married Woman's Act most effectually makes the estate of the wife her separate estate, and yet it has not abolished the husband's curtesy after her death."
In Trade Insurance Co. v. Barracliff, supra, this court, through Mr. Justice Dixon, ruled that, notwithstanding the provisions of the Married Woman's Act, the husband, "by the birth of offspring * * * obtained an inchoate right which, on his wife's death, he surviving, would bloom into a freehold," and that, where the husband and wife were in the possession and enjoyment of the wife's lands, in which he had such inchoate interest, he had an insurable interest therein. This doctrine of "inchoate curtesy" seems first to have found lodgement in our jurisprudence -- apparently in analogy to the common law inchoate right of dower, one having different attributes, however -- in the case of Ross v. Adams, 28 N.J.L. 160; reversed on other grounds, 30 Id. 505, where the opinion of the Supreme Court terms the husband's interest, after the birth of issue, as a tenancy "by the curtesy inchoate," characterized as "a future or contingent interest which would pass by" the husband's mortgage.
In Castner v. Sliker, supra, Chancellor McGill, invoking the case of Porch v. Fries, held that the husband was not a necessary party to a suit for partition instituted by the wife, since under the Married Woman's Act the husband then had no estate or interest in his wife's lands. See, also, Young v. Young, 45 N.J. Eq. 27. And in Bristol v. Skerry, 64 Id. 624, Vice-Chancellor Grey said that, notwithstanding the
Married Woman's Act, the husband "still has an equity which" Chancery "will recognize, and which makes him, though not a necessary, yet a proper party to his wife's suit. He still has power to prevent his wife from conveying her lands, for her deed made without his joining in it is a nullity. If a child be born during the coverture, and the husband survives his wife, he will yet take in them an estate by the curtesy complete."
In Doremus v. Paterson, supra, Vice-Chancellor Stevens expressed the view that the Married Woman's Act deprived the husband of "a freehold estate in possession" during his wife's life, but that, upon the wife's death (issue having been born alive), "he became entitled to a freehold interest in possession for his own life," of which "his wife could not by will or deed deprive him," and therefore it would seem that, in such circumstances, the husband has "an estate in remainder in his wife's land, which is as completely vested in him as any vested estate in remainder for life is ever vested in any remainderman," and so "such an interest as would make him a necessary party to any suit that might touch or affect his interest in his wife's land after her death." See, also, Leach v. Leach, 69 N.J. Eq. 620.
And in Hackensack Trust Co. v. Tracy, supra, Chancellor Walker gave voice to the same view. He suggested that the Married Woman's Act deprived the husband only of his "possessory right or interest" in his wife's lands -- the common law tenancy by the curtesy initiate is a freehold estate in possession -- and that "the right and interest" which the husband "has to succeed to a freehold estate in possession for his own life after" his wife's death (issue being born alive) "inheres in him from the time of the marriage until his death during her lifetime;" and further, that the husband has "a contingent estate in remainder in his wife's land during coverture before the birth of issue, just as he has a vested estate in remainder after the birth of issue," and that this contingent estate in remainder should ...